Appeal from Trial Term, New York County.
Action by the City of New York against the New York City Railway Company. From a judgment of the Special Term ( 60 Misc. 487, 113 N.Y.Supp. 869) in favor of plaintiff, defendant appeals. Affirmed.
A street railway required by its franchise and by Railroad Law (Laws 1890, p. 1112, c. 565), § 98, as amended by Laws 1892, p. 1404, c. 676, to keep in repair all portions of the street between its tracks and two feet outside, has no constitutional right to be heard on the question whether the requirement of the proper local authorities to lay a new and improved pavement is reasonable, since the obligation of the company is a mere condition of its use of the streets and as compensation to the city therefor.
J. P. Cotton, Jr., for appellant.
Terence Farley, for respondent.
Argued before PATTERSON, P. J., and INGRAHAM, McLAUGHLIN, LAUGHLIN, and CLARKE, JJ.
This action was brought to recover the expense incurred by the plaintiff in laying certain pavements in West Broadway in the city of New York through which a line of street cars was [116 N.Y.S. 940] operated by the defendant. There was no substantial dispute about the facts. Both parties requested the court to direct a verdict, and there was no request to submit any question to the jury.
The Metropolitan Crosstown Railroad Company was authorized to construct, maintain, use, and operate a street railroad through certain streets and avenues in the city of New York, which included South Fifth avenue from Spring street to Fourth street, by a resolution of the common council of the city of New York approved by the mayor on December 31, 1889. This ordinance was adopted upon the condition that the provisions of chapter 252, p. 309, of the Laws of 1884 should be complied with; that the right, franchise, and privilege of using the said streets and avenues to construct, maintain, use, and operate a street surface railroad upon said streets and avenues, subject to all the provisions of chapter 252, p. 309, of the Laws of 1884, and of chapter 642, p. 919, of the Laws of 1886, should be sold at public auction to a railroad company organized to construct, maintain, and operate a street railroad in the city of New York which would agree to give the largest percentage per annum of its gross receipts; that the bidder to which the aforesaid sale should be made-
" shall be absolutely and unqualifiedly bound, and any person or company using or operating a railroad upon the tracks, or any part of the tracks, constructed upon the said route under or by virtue of the consent hereby given or the sale had in pursuance thereof, as to the tracks so used by it or him, shall be jointly and severally bound with the said bidder absolutely and unqualifiedly to repair and keep in permanent repair the portion of said streets and avenues upon which the tracks shall be so constructed, between the tracks, the rails of the tracks, and a space two feet in width outside of and adjoining the outside rails of the track or tracks, so long as such tracks so constructed shall continue to be used, and this obligation in respect to the repairing of the streets shall not be dependent upon the requirements of the local authorities, but is hereby made an absolute and unqualified obligation."
It was further provided that:
" Any person or company who shall use or operate a railroad upon the tracks, or any part of the tracks, constructed upon the route hereinabove described, under or by virtue of the consent hereby given, or the sale had in pursuance thereof, shall be subject to the same conditions, liabilities, obligations, duties and payments in respect to such use or operation by him or it, of or upon such tracks, as the bidder to whom the sale shall be made under this consent would be subject were such use or operation by such bidder."
And by an ordinance adopted by the board of aldermen on September 19, 1892, and approved by the mayor October 8, 1892, consent was given to the Metropolitan Crosstown Railroad Company to construct, maintain, and operate an extension or branch of its route on West Broadway from Spring street to Broome street to be operated in connection with the railroad of the Broadway & Seventh Avenue Railroad Company as a continuous route. This consent was given upon the express condition that the said Metropolitan Crosstown Railroad Company would do and perform all that the law requires in such cases, and should be subject to all the limitations thereof. By section 98 of chapter 565, p. 1112, of the Laws of 1890 (as amended by chapter 676, p. 1404, of the Laws of 1892) it is provided that every street surface railroad corporation, so long as it should continue to use any of [116 N.Y.S. 941] its tracks in any street, avenue, or public place in any city or village, should have and keep in permanent repair that portion of such street, avenue, or public place between its tracks, the rails of its tracks, and two feet in width outside of its tracks, under the supervision of the proper local authorities, and whenever required by them to do so, and in such manner as they may prescribe; that, in case of the neglect of any corporation to make pavements or repairs after the expiration of 30 days' notice to do so, the local authorities may make the same at the expense of such corporation. It was then conceded by the defendant that the Metropolitan Crosstown Railroad Company, Metropolitan Street Railway Company, and Lexington Avenue & Pavonia Ferry Railroad Company were consolidated into the Metropolitan Street Railroad Company, and that the Interurban Street Railway Company became the lessee of the Metropolitan Street Railway Company, and that its name was subsequently changed to the New York City Railway Company (the defendant in this action) on or about the 28th day of December, 1903; that South Fifth avenue named in the consent was now known as West Broadway.
It further appeared that on the 6th day of June, 1905, there was served upon the vice president of the defendant a notice signed by the president of the borough of Manhattan which gave notice to the defendant that that portion of West Broadway from Dey street to West Fourth street between the tracks, the rails of the track, and two feet in width outside of the track of the street surface railroad used by the defendant in said West Broadway was out of repair and in need of repavement, and that the defendant was accordingly required to place and keep the same in repair under the supervision of the president of the borough of Manhattan and in such manner as he may prescribe; and that in case of the defendant's neglect to make such repavement or repairs after the expiration of 30 days from the day of service of the notice the president of the borough of Manhattan would proceed to make the same at the defendant's expense. Notice was also given that the city of New York was about to repave with wood block pavement the roadway of West Broadway in accordance with specifications on file in the office of the commissioner of public works, and that the repairs or pavements made by the defendant in accord with the foregoing notice must be in the manner prescribed in and by said specifications; that a contract for such repavement was about to be advertised for and let in the manner prescribed by section 419 of the Greater New York Charter (Laws 1901, p. 186, c. 466); that, in case of the defendant's failure to notify the president of the borough of Manhattan within five days after the receipt of such notice of the defendant's intention to repair and repave the said portion of West Broadway on its own account in the manner before prescribed and within 30 days of the date of the service of notice, the president of the borough of Manhattan would include the said portion of West Broadway in the contract before mentioned, and would hold the defendant liable for the payment of the expense thereof at the price fixed or to be fixed in said contract. It was then proved that on the 28th of October, 1905, the city of New York made a contract for the repaving [116 N.Y.S. 942] of West Broadway, under which contract the street was subsequently repaved and the amount required therefor paid by the city of New York. The total amount paid by the plaintiff for the construction of this wood block pavement within what was called the railroad area in West Broadway occupied by the defendant was $6,556.73. After evidence by the plaintiff and defendant as to the condition of the pavement in this street, it was conceded for the purpose of the trial that:
" The pavement on West Broadway at the location mentioned in the complaint between the track, the rails of the track and two feet outside of and adjoining the outside rails of the tracks was in a good condition of repair, but that the general condition of the portion of West Broadway involved in this action outside of the ‘ ...